Variety (April 1909)

8 VARIETY UNITED STATES COURT DECIDE S KELLER MAN CASE Enjoins the Diver from Playing for Anyone Without B. F. Keith's Consent Under "Winter Contract." Decides " Summer Contract" Inequitable. An order signed by Judge Ward, of the United State* Court for the Southern Dis- trict of New York, prohibits Annette Kel- lerman from appearing for William Morris untfl after May 3, of this year and from appearing in any theatres without the authority of B. F. Keith during the periods between October and May of 1008-09 and 190910. Tills is the outcome of a struggle be- tween the Morris Circuit and the United ^* M * M ^g Offices for the services of "the Drying Venus." In effect it deprives the independent manager of her services ex- cept during the summer season. Miss Kellennan has appealed from Justice Ward's ruling. Argument on the appeal will likely come up in April. If the ap- peal Is not decided during the April term of the United States Orcuit Court of Ap- peals, it will come up in October, in either ease being in time to determine Miss KeUerman's rights for next season. From the papers submitted it appears that Miss Kellennan entered into two separate agreements with B. F. Keith, one covering the winter and one the sum- mer season. During the winter season <October to May) the manager guaranteed a certain number of weeks' employment (10 weeks), but during the remaining por- tion of the year (twenty-two weeks) he did not promise consecutive employment. These circumstances led the court to decide that the "summer contract" might be construed as invalid, owing to its lack of "equitable mutuality." The "winter contract" he declared a legal instrument sines it specified a period of employment and mutually agreeable compensation. It Is said that Miss Kellennan will play for Morris Immediately after May 3, when she is at liberty. The diver will probably appear also at the opening of the Ameri- can Roof Garden, making a summer run there. For her services to the Morris Cir- cuit last week at the American, she re- ceived her full salary, amounting to $1,600, five times ss much as she received in one week under her contract with B. F. Keith. Maurice Goodman appeared as the attor- ney for B. F. Keith. Henry W. Taft was counsel. For the defendant, Annette Kel- lennan, Geo. M Leventritt is the attorney, with William D. Guthrie and Benjamin F. Cardosa as counsel. Mr. Taft is reported to have received a retainer of $8,500; the counsel for Miss Kellennan, $1,000 each. After reciting the text of the Keith con- tracts Judge Ward says: It will be aeen that together the rtoenments corer public performances to be given by the de- fendant from October 19 to May 8, called the winter season, and from Jane 1. or as soon thereafter as the weather should permit and the necessary preparations could be made, but not later than July 1, to such date In September as the plaintiff abonld determine, being the sum- mer season. Between the two seasons the de- fendant agre e d not to perform anywhere except with the plaintiff's consent. The defendant admitting that the first agree- ment (winter) Is one for employment, contends that the second Is a partnership, but I think It Is also a contrnct for employment. The plain- tiff Is described an the manager, the defendant as the performer; the defendant agrees to per- form in such acts on such dsys and at aucb tlmea aa the plaintiff shall direct; between the winter and summer seasons the defendant agrsss not to perform at all except with the plaintiff's consent. While It Is true that the sharing of profits to a moat distinctive feature of partnerships* such sharing In the case of contracts for the lean of money or for personal serrlces la generally a method of measuring compensation. The real test of partnership la whether the parties are Jointly Interested aa prlnclpala and may bind each other by their acta or engagementa within the scope of the enterprise. I thlnh It Impossible to say that the defendant can be regarded an author- lsed to bind the plaintiff by her acta or promisee. The defendant refused to continue to perform her contract with the plaintiff and made a new agreement for fifty-one consecutive weeks be- ginning March 22, for higher compensation, with his principal business competitor. Thereupon the plaintiff filed this bill, obtained aa order to show cause why a preliminary Injunction restrain- ing the defendant from performing for any one but himself down to the first of May, 1910, with a restraining order In the meantime. The affldavlta make It entirely clear that the defendant's performsuces in diving and swim- ming are unique and that the plaintiff If deprived of her services will be subjected to great loss. Impossible of sstlsfsctory measurement; that the plaintiff la and alwaya has been ready and willing to perform his part of the contract fully, but that the defendant baa abandoned the contract solely for the purpoee of making n more profitable en- gagement with the plalntlff'a principal business competitor. The defendant contends that no Injunction should Issue because the contrscts either con- strued separately or together lack equitable mutuality. It la aald that Article I regulating the winter season which requires the defendant to perform "In such theatres and other places and on such days ss msy be designated" by the plaintiff does not bind him to designate any theatres, places or dsys at all. It la further aald that Article IV which requires the plaintiff to pay the defendant "$800 at the end of each week after the last performances on Saturday for serrlces rendered or produced by said second party as hereinbefore provided," does not require the plaintiff to pay anything If he has not designsted any theatre or place In or day on which the defendant la to perform. such n construction Is wholly unreasonable and . also unnec e ssary becsuse the contract admits of a reasonable one. If the action were by the de- fendant to recover damagee at the rate of $800 a week for any week or weeks during the winter season in which tho plaintiff refused or omitted to designate any time or place for her to per- form, I thlnh It perfectly clear that aha could recover. The agreement being capable of a con- struction consistent with fairne s s and common sense should be given thst construction In prefer- ence to one thst Is unressonsble to the point of dishonesty. The contract presents every element to Justify the issuance of an Injunction In aid of Its performance, vis., the uniqueness of the de- fendant's sets, the deflnlteness of the time of her employment, the certainty of the plalatUTa loss and the difficulty of measuring It, the combina- tion of a positive covenant to perform for the plaintiff with the negative covenant to perform for no one else. On the other bend, the second part of the con- trsct, regulstlng the summer season, aeema to me to be open to the objection thst It does lack equitable mutuality. Neither expressly nor by necessary Implication doea It fix the periods when performances ahall be given. For business or other reasons satisfactory to him the plaintiff might omit exhlbltlona during any part of the summer season. During such period there would be no proceeds to divide and the defendant would be without compensation and at the aame time nnder a covenant not to perform for anyone else. The contract lacks in this respect the kind of mutuality which movee a court of equity to aid lta performance by Injunction. The defendant would receive compensation, If sny, only for sctusl performsnees, whereas under the contract for the winter season she would be entitled to compensation for readiness to perform. It is also objected thst no Injunction should be granted because the oontraet previses far ex- hibitions on Sunday in violation of statute. It la true that exhlbltlona hare been gives ss ■usday, the defendant claiming extra oompenaatlos en the ground that the oontraet doea not cover and the plaintiff refusing aald compensation os the ground that It deea oover Sundays, The oentract dees net expressly so provide and If ansa exhlbltlona on Sunday are In violation of the statute, wktoh I do not decide, the parties should be takes set to hsve intended to violate the law sad to thst end the words "dsys" and "week" wherevei should be oontatrned aa not ii>«i«si«g ■sjsjdsyn. The contract being divided Into two entirely sepsrsble psrts, one for the winter end the other for the summer sesson, I see no reason why the Court should refuse the plaintiff equitable aid aa to that part which admlta of it, leaving the psr- tlea to their rlgbta and remedlea at law In re- spect to thst part, the performance of which for the reasons ststed should not be sided by equity. I will sign an order restraining the defendant from performing for anyone else than the plain- tiff wlthnnt his written consent during the re- mainder of the winter sesson of 1908-1900 and. dnrlng the winter sesson of 1900-1910. Dated. New York. March 29. 1909. UNEXPECTED MOVE BT STATE. Louisville, April 1. An unexpected move on the part of Joseph M. Huffacker, Commonwealth At- torney for this district, has blocked the sanction of the city through its Mayor in the approval for the building permit of the Gayety Theatre. The State has asked for an injunction restraining R. K. Hynicka from complet- ing his building on the ground that Hynicka and the local authorities have conspired to defeat a decision of the Court of Appeals, which decided the license issued by the city was illegal. It is believed the present injunction proceedings will ultimately reach the Court of Appeals again, tying up the Gayety meanwhile. The attorney for Mr. Hynicka has stat- ed that this last move contained no more merit than the previous efforts to prevent the building of the Gayety. He ascribed the blocking tactics to the Whsllen Broth- ers, who operate the Buckingham, the Western Wheel house. The attorney also said he could win for the Gayety before any court. "BLUE RIBBONS* FIRST TO CLOSE. "The Blue Ribbons" will close its season on the Eastern Burlesque Wheel April 10 at Cincinnati. It will be the first regu- lar Wheel show to stop touring. The change in the Eastern time down south is responsible. GreenwaH's, New Orleans, Is listed to convert itself into a "picture house" for the summer before the "Blue Ribbons" would reach there. The other time below the Mason & Dixon line was cut out by the show. APRIL 19 WALDR0ITS LAST. Boston, April 1. It is reported here that Waldron's will close April 24. The final attraction at the old house will be The Cracker Jacks." Waldron's will occupy a new building next season on Hanover Street near Tremont Row. Charles Waldron is said to have re- ceived a $20,000 bonus for giving pos- session of the old house before the ex- piration of his lesse. Of this amount he spent almost half in buying the unexpired leases of other tenants in the building. BURLESQUE ALL SUMMER. Unless a change occurs in the intention of Hurtig & Seamon, burlesque will reign all summer at their 125th Street Music Hall, where the Eastern Burlesque Wheel shows now make a week's stand each. Hurtig & Seamon will place "The Girls of the Moulin Rouge" in the house at the close of the season. The piece may remain for a run. If it should be with- drawn, stock burlesque will be installed. Only excessive heat will break up the arrangement. The Metropolis Roof may remain closed over the summer. A policy for the Hur- tig A Seamon's aerial place of the Bronx has not been decided upon. OLYMPIC CHANGS SEEMS CERTAIN. Chicago, April 1. The reported change of policy in the Olympic from vaudeville this sesson to burlesque next season seems authentic. James Hyde, who was here this week, is said to have confirmed the report. The Olympio will go on the Eastern Burlesque Wheel if it plays that style of show. Another house for the Eastern in St. Louis is claimed to be on the tapis. There are said to be many available houses for the Wheels over the country through the slump in the Stair & Havlin Circuit. These may be secured without building. Many changes on the burlesque cir- cuits are looked for before next fall. It is thought the Western Wheel is likely to profit the most in the matter of obtaining better locations and houses. EMPIRE IN SOUTH. There was an unconfirmed story in town this week that the Empire Circuit (Western Burlesque .Wheel) might take up the southern time about to be aband- oned by the Eastern. This included Birmingham, Ala., Memphis, Tenn., and New Orleans. In the latter city the Eastern people have still to settle terms for the surrender of the booking contract. It is likely that the payment of a bonus will pave the way for the retirement of the burlesque people from GreenwaH's. "COOCH" RACE IN PHILLT. Philadelphia, April 1. The enthusiasm over "cooch" dancers continues to grow and the burlesque houses are having a fine contest for su- premacy. The Western Wheel appears to be trying to make a glorious finish on the season at the Bijou, and is securing a great big share of the business. Eddie Shayne at the Gayety has been having things pretty much his own way and is getting the money. The Bijou is situated just below the Gayety. For the past three weeks it has been doing a land- office business. This week Florine, "The Girl in Red," ia drawing them in. The red robed wig- gler is going it at a merry pace. She ia the first one to go to the stage with her wiggling this season. The prostration reaches pretty near the limit, but up to Wednesday the police had kept hands off. Chooceeta is billed for next week. Charles Bornhaupt, New York rep- resentative for H. B. Marinelli, left for a trip to the Pacific Coast this week. He said he would be gone about three weeks and would visit San Francisco. He would not say what his mission was in the far western country. CLOTHES SEIZED FOR DEBT. A United States Deputy Marshal de- scended upon the "Girl from Happyland" chorus at Perreard's Hotel, Washington, and levied upon their wardrobe. The girls complained bitterly when showed the attachment papers. Several had to walk to the Union Depot in their stage dress. The unhappy choristers assert that the attachment (issued by a local instalment jewelry concern) was meant to have been served upon a principal. Instead Mabel Leslie and Miss Reynolds declare their trunks were opened and a quantity of clothes taken. Michael Pinglia, tenor of the Orpheum Comedy Four, was out of the act at White Plains the first half of this week, owing to the death of a member of his family.